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Michigan AG Challenges Court Decision Involving Line 5 Tunnel Law

LANSING – With a brief filed today in the Michigan Court of Appeals, Michigan Attorney General Dana Nessel continues to challenge the constitutionality of the law which provided for the 2018 agreement between Gov. Rick Snyder’s administration and Enbridge Energy to build a tunnel beneath the Straits of Mackinac to house the energy company’s Line 5 pipeline.

Public Act 359 of 2018 was rushed through the Legislature to amend Public Act 214 of 1952, which allowed for the construction of the Mackinac Bridge. The brief filed today argues that the 2018 act violates Article 4, Sec. 24 of the Michigan Constitution, referred to the Title-Object Clause, which provides that “No law shall embrace more than one object, which shall be expressed in its title.”

In response to questions raised by Gov. Gretchen Whitmer, Nessel issued a formal opinion in March 2019 that concluded Act 359 was unconstitutional and the agreements based upon it made between the Snyder administration and Enbridge should likely be considered void.

In June 2019, Enbridge Energy countered by suing the State in the Michigan Court of Claims seeking a declaration that the Act is constitutional, thereby making the December 2018 tunnel agreement valid. The Court of Claims agreed with Enbridge and ruled in the energy company’s favor on Oct. 31, 2019.

The brief filed today by the Michigan Department of Attorney General asks the Court of Appeals to reverse the Court of Claims decision because Act 359 violates the Title-Object Clause by not providing fair notice of the content of the law, and embraces two unrelated objects – a utility tunnel to carry oil beneath the Straits and the Mackinac Bridge to carry motor vehicles above.

Separately today, a panel of the Court of Appeals denied, by a 2-1 vote, the State’s motion for stay pending appeal. Had it been granted, the stay would have delayed the effect of the Court of Claims decision until the Court of Appeals reached its decision on the constitutionality of Act 359. Instead, Act 359 currently remains in effect during the appeal.  The State is reviewing the order.

This case is separate from and not related to the Attorney General’s lawsuit that seeks to shutdown Enbridge’s existing pipelines in the Straits.